Bees, fish and the California Endangered Species Act

Anyone who has held a hard copy of the California Fish and Game Code knows it is a substantial document, comprising many thousands of numbered code sections spanning over 700 pages. New provisions are layered into this century-old volume almost every legislative season, increasing its heft but rarely its clarity.

If the Code had a motto, it would be "why say something once clearly, when you can say it a half-dozen times, each slightly different from the last?"

But notwithstanding its often-redundant or imprecise language, one thing is abundantly clear in the Fish and Game Code: imperiled insects and other invertebrates can and must be protected under the California Endangered Species Act (CESA).

On Sept. 21, the California Supreme Court denied a petition for review of a Third Appellate District decision upholding the California Fish and Game Commission's authority to protect four species of native bees under CESA. (Almond All. of Cal. v. Fish & Game Com., 79 Cal. App. 5th 337, 294 Cal. Rptr. 3d 603 (2022)). In so doing, outgoing Chief Justice Cantil-Sakauye noted that "the Court of Appeal arrived at what might superficially seem like a counterintuitive result."

The "counterintuitive result" was that for bees to be eligible for protection under CESA, they must legally (albeit not biologically) be found to be "fish." The Court of Appeal found that under the plain language of the Fish and Game Code, bees indeed fall within the statutory definition of "fish."

This decision was widely reported and often mocked, typically with the frame that only a California court could possibly find that "bees are fish." But to anyone familiar with the history and content of the California Fish and Game Code, or wildlife management more generally, there is nothing surprising or counterintuitive about this result.

The names of both the Fish and Game Commission and Fish and Game Code reflect a utilitarian and antiquated, yet simultaneously inclusive ordering of wildlife. At its simplest, regardless of taxonomy, most animals are branded either "fish" or "game." Consequently, "fish" and the related terms "fishing" and "fishery" have long been applied to all manner of species beyond what taxonomically fall into the modern scientific category of "fish."

Numerous animals, from starfish, jellyfish, shellfish, and cuttlefish to blackfish are not under any current scientific classification considered "fish," but retain the moniker in their names and have been subject of fisheries. Moreover, even the animals a modern biologist properly calls "fish" fall into three broad groups (bony fishes, cartilaginous fishes, and jawless fishes) that are phylogenetically no more closely related to each other than bony fish are to amphibians, reptiles, mammals and birds. "Fish" in some ways is as much a biological term of art as it is a legal one.

"Fishing" is similarly an inclusive term that is not limited to marine or even aquatic species, as a fishing license is needed to catch bullfrogs and snakes in California. Moreover, the two most economically important commercial fisheries in California target Dungeness crab and market squid, a crustacean and mollusk respectively. In fact, five of the top eight fisheries in the state target invertebrates. And while crab and squid are fortunately abundant enough that they are unlikely to ever need the protections of CESA, several of the state's abalone species have been overfished to near extinction and may soon need the statute's protections.

In this context, the Fish and Game Code's expansive definition of "fish" makes perfect sense: "'Fish' means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." (Ca. Fish and Game Code Section 45) (Emphasis added).

The key word here is "invertebrate," an inclusive term that captures 95 percent of animal species, including not just commercially targeted crabs, squid, clams and abalone, but also insects. And bees, of course, are insects.

Because CESA is part of and governed by the Fish and Game Code, and explicitly provides for the protection of imperiled "fish," while the Code's definition of "fish" includes invertebrates, there can be no doubt that bees and other insects are eligible for protection under the statute. Protecting them as such is not just the law, but also good policy and essential for the ecology and economy of our state.

While generally not the subject of direct commercial exploitation, insects are of extreme ecological and economic importance, with native insects providing ecosystem services valued at greater than $57 billion annually in the United States.

Among the most important ecosystem service provided by insects is pollination. In California, a 2011 study estimated the value of crop pollination by insects to be as much as $6.3 billion per year. Approximately two-thirds of this value is provided by managed honeybees, while a third is provided by wild native bees. Consequently, native bees contribute upwards of $2 billion annually in pollination services to the state.

Unfortunately, native bees are declining rapidly in both diversity and abundance across North America generally and in California specifically. A 2020 study found that the average chances of a bumblebee occupying a given area in North America have dropped by almost half in recent decades. Other studies have documented declines of upwards of 90% in the abundance of previously widespread bumblebee species. In 2019, the California Department of Fish and Wildlife found that the four species of bumblebees at issue in Almond Alliance had declined significantly in recent decades, some by upwards of 97%.

These bees, and other insects such as our iconic monarch butterflies, need legal protection and active management if they are to survive. The California Endangered Species Act needs no amendment or clarification to provide such desperately needed protection, just the political will to fully implement it.